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Lords committee seeks to improve diversity in English judiciary

28 March 2012

More efforts should be made to improve diversity among the judiciary in England & Wales, acording to the House of Lords Constitution Committee in a report published today.

The committee concludes that a more diverse judiciary would improve public trust and confidence in the justice system. It rejects any notion that those from under-represented groups are less worthy candidates or that a more diverse judiciary would undermine the quality of judges.

Its report includes statistics showing that in 2011 only 5.1% of judges were Black, Asian and Minority Ethnic (BAME), and just 22.3% were women. However the committee stressed that diversity incorporates a number of other elements including disability, sexual orientation, legal profession and social background. 

Recommendations to improve diversity include:

  • The Lord Chancellor and Lord Chief Justice should have a duty to encourage diversity amongst the judiciary, as the Judicial Appointments Committee (JAC) does currently.
  • While appointment based on merit is vital and should continue, the committee supports the application of s 159 of the Equalities Act 2010 to judicial appointments. This would allow the desire to encourage diversity to be a relevant factor where two candidates are found to be of equal merit.
  • Opportunities for flexible working and the taking of career breaks within the judiciary should be made more widely available to encourage applications from women and others with caring responsibilities. 
  • There needs to be a greater commitment on the part of the Government, the judiciary and the legal professions to encourage applications for the judiciary from lawyers other than barristers. Being a good barrister is not necessarily the same thing as being a good judge.
  • While the committee does not currently support the introduction of targets for the number of BAME and women judges, it says this should be looked at again in five years if significant progress has not been made.

Independence

The committee also stresses the importance of the independence of the judiciary and believes that the Lord Chancellor’s role in individual appointments should be limited. It says that his power to reject nominations for posts below the High Court should be transferred to the Lord Chief Justice.

It rejects any suggestion that judicial candidates should be subject to US-style pre- or post-appointment parliamentary hearings, as political considerations would undoubtedly influence both the parliamentarians chosen to sit on the panels and the questions put to candidates, affecting the independence of the judiciary.

However the committee supports a system of formal appraisals being introduced for judges. It points out that this is now common practice in business, the professions and the civil service, and would be of benefit to judges, as well as helping to assure the public that the judiciary is of the highest possible quality.

It also recommends that the retirement age for the most senior judges, those in the Court of Appeal and the Supreme Court, should be raised to 75. This would prevent a loss of talent in the highest courts whilst allowing more time for women and others who have not followed a traditional career path to reach the highest levels of the judiciary. The retirement age for all other judges should continue to be 70.

Commenting on the report, committee chair Baroness Jay of Paddington said: “It is important that judges are appointed on merit but the committee felt there are steps that could be taken to promote diversity without undermining that principle. Requiring the Lord Chancellor and Lord Chief Justice to encourage diversity and supporting flexible working within the judiciary would be a good start. It is also important that solicitors, who are a more representative group of society than barristers, do not face any impediments to a career in the judiciary."

Earlier this month, at an event to mark International Women's Day, Scottish judge Lady Cosgrove also called for a "less rigid" selection process and more flexibility in working conditions, in order to improve the proportion of women among the Scottish and UK judiciary. Only five of the current 34 serving judges on the Court of Session and High Court bench are women. (Click here for report.)

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